On November 26, 2006, the USEPA issued an aquatic pesticide rule which states that a Clean Water Act (CWA) permit is not required for the application of pesticides directly to water in order to control pests or for the application of pesticides to control pests that are present over or near water, where a portion of the pesticide will unavoidably be deposited in the water in order to target the pests (i.e., spraying to control non-native plants growing on the water's edge because some of the pesticide would unavoidably enter the water). EPA determined that the CWA as it applies to pesticides is ambiguous and that pesticides applied according to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) requirements are not pollutants and therefore are not subject to NPDES permitting.

On January 26, 2007, the Rule became effective. However, on January 19, 2007, EPA received petitions for review of the Aquatic Pesticides rule from both environmental and industry groups. The case, National Cotton Council, et al, v. EPA, was assigned to the Sixth Circuit Court of Appeals.

On January 19, 2009, the U.S. Sixth Circuit Court of Appeals held in National Cotton Council, et al, v. EPA, that the final Aquatic Pesticides rule was not a reasonable interpretation of the CWA and vacated the rule. Reversing EPA's November 2006 Aquatic Pesticides Rule, the Sixth Circuit held that CWA permits are required for all biological and chemical pesticide applications that leave a residue in water when such applications are made in, over, or near waters of the U.S.

In response to this decision, on April 9, 2009, EPA requested a two-year stay of the mandate to provide the Agency time to develop general permits, to assist NPDES-authorized states to develop their NPDES permits, and to provide outreach and education to the regulated communities. On June 8, 2009, the Sixth Circuit granted EPA the two-year stay of the mandate. The stay of the mandate would have expired on April 9, 2011. On March 28, 2011, EPA requested a 6-month extension of the original two-year stay from the 6th Circuit Court until October 31, 2011. This extension was granted by the Court. As of October 31, 2011, NPDES permits will be required for all point source dischargers to waters of the State from the application of pesticides that leave a residue.

This general permit has been issued in accordance with this court ruling.

Q. When does the permit become effective?A. The permit becomes effective October 31, 2011

Q. When will I have to submit an application for permit coverage?A. Permit coverage is automatic as of October 31, 2011, for any operator applying pesticides according to this permit. However, any operator who exceeds an annual treatment area threshold listed in Table 1 of the permit will not be required to submit a Notice of Intent (NOI) until January 31, 2012.

Q. If I have to submit a NOI for permit coverage, what will that cost me?A. The base fee for processing a NOI submitted for coverage under this permit is $1155.00.

Q. How will I know if I will have to submit a NOI?A. Any operator exceeding an annual treatment area threshold listed in Table 1 below is required to submit an NOI to obtain coverage under this general permit for discharges to waters of the State as a result of the application of pesticides.

Table 1. Annual Treatment Area Thresholds

Pesticide Use

Annual Threshold

Mosquitoes and Other Flying Insect Pest Control

During a calendar year, treating with adulticide, 6400 acres of
treatment area

Weed and Algae Pest Control:

- In Water

During a calendar year, 100 surface acres of water

- At Water's Edge

During a calendar year, 100 linear miles of treatment area in waters of
the State or at water's edge

Animal Pest Control:

- In Water

During a calendar year, 100 surface acres of water

- At Water's Edge

During a calendar year, 100 linear miles of treatment area in waters of
the State or at water's edge

Forest Canopy or Other Area-Wide Pest Control

During a calendar year, 6400 acres of treatment area

Completed application forms should be mailed or hand delivered for processing to the ADEM Montgomery office.